The International Cauldron

Lessons Learnt & a unique Sri Lankan Transitional Justice mechanism

“I am a relative newcomer to the Sri Lankan context. I do not come here pretending to have answers for you as you navigate an important period in Sri Lankan history. Instead I come here to give you, I hope, some useful insights from the perspective of an outsider. While I am an outsider to the Sri Lankan situation I am not an outsider to transitional justice” – Professor Robert SlyeDr. Neelan Tiruchelvam was a highly renowned Sri Lankan Tamil constitutional lawyer, legal scholar, legislator, peacemaker, and politician. On the 29th of July 1999 he was assassinated by the LTTE. The Neelan Tiruchelvam Trust was founded in 2001 to sustain the legacy of Dr. Tiruchelvam. It is an indigenous philanthropic organization committed towards social justice, peace, and reconciliation. On the 31st of July 2016 the Trust held its 17th memorial lecture conducted by Ronald C. Slye, professor of law at Seattle University School of Law and also a former commissioner for the Kenyan Truth, Justice, and Reconciliation Commission. He was also a legal consultant for the South African Truth and Reconciliation Commission and its amnesty process.The lecture was titled ‘Difficult Issues, Strategic Choices: Crafting a Coherent Sri Lankan Transitional Justice Process’. Sri Lanka is a unique case because it has the opportunity to create a transitional justice process derived from the South African, Kenyan, and Cambodian cases through a lesson learnt approach. Professor Ronald Slye explained the successes and failures of the truth commissions in Kenya and South Africa, and explains the need to research in to this and adopt a coherent mechanism that is suitable to the Sri Lankan context.

What is transitional justice?

The International Centre for Transitional Justice (ICTJ) defines transitional justice as “the set of judicial and non-judicial measures that have been implemented by different countries in order to redress the legacies of massive human rights abuses. These measures include criminal prosecutions, truth commissions, reparations programs, and various kinds of institutional reforms” Sri Lanka has made some minute progress towards institutional reform with the 19 amendment that established the independent commissions and also in the process of consulting the public opinions for constitutional reforms. However approaching the other elements is an arduous task because it is considered highly controversial due to the conflict of interests between the Tamil minority and the Sinhala majority.The political parties representing the Tamils in the North and East with a tremendous backing from the Tamil diaspora have been pressurizing the government in the post war era to establish a proper mechanism for transitional justice which is one of the recommendations contained in the US-sponsored UNHRC resolution against Sri Lanka. Transitional Justice must not be seen as a retributive process but a search for answers for those who have suffered terrible losses and adequate compensation. It is important for Sri Lanka to establish a proper mechanism to project itself to the international community as an inclusive state with respect to minority rights. It is thus within a state’s responsibility to accommodate a call for transitional justice.

Lessons to learn

Professor Robert Slye explained that when Kenya made their own transitional justice process they learned from the South African experience. In the South African case the focus had been primarily on bodily integrity rights such as killing, rape, and torture. They had failed to consider socio-economic rights which were a failure but they learned from the South African mistake and had included socio-economic rights in to their truth commissions. Gender imbalance was another focus of the lecture which is important for inclusivity. It was understood through the Kenyan case that women are subjected to ‘systematic, structural, and institutional violence’ that affects women disproportionately and the truth commissions do not encourage women participation which is a result of the socio-cultural context of the countries. It was identified that in Kenya women professionals are 13.3% compared to 86.7% men. However during the activities of the Kenyan truth commission they had ensured that 43% of the statement takers are women and their exclusive women only hearings composed of only female commissioners were an extreme success. Professor Slye pointed out that those commissioners were devastated after the hearings due to the intensity of the traumatizing experiences that were shared. He further explained that it is important to adhere to a proper coordination and communication system when addressing important issues and the role of civil society. In this enormous process of transitional justice it is important to include many actors such as victims, business community, religious community, military, and security sector. However the extent to which they get involved and their roles have to be well defined so that they do not hinder the process with their own agendas.

The most controversial aspects

The inclusion of foreign experts in the process is subject to much debate and had created a wave of controversy in Sri Lanka especially when Hon. Minister Mangala Samaraweera released a statement in response to the UNHRC resolution that the government is considering the creation of a hybrid court system. Professor Robert Slye through research explained that it had failed in one case and had succeeded in the other.In the Kenyan case one third of all the commissioners in all commissions were foreign and all had equal power. The Kenyan commissioners could outvote international commissioners but not without the knowledge of at least one international commissioner. They had found a middle position because in some cases certain parts of the population only trusted the international commissioners who were able to build trust with the marginalized and vice versa. The Cambodian case was also similar as there were those who mistrusted the international elements as well. But in the Khymer Rouge Tribunal they had a veto and could outmaneuver a majority. This had only created chaos and was not a suitable approach. The final note was on amnesty. What amnesty entails is the temporary suspension of the rule of law to prevent certain individuals from accountability for their actions and in the Sri Lankan context an extensive study must be done into the jurisprudence on amnesty and grant it sparingly and prudently. A controversy that undermined the Kenyan Transitional Justice process was the appointment of Bethuel Kiplagat as the Chairman of the Truth and Justice Commission who had been implicated and was under investigation for violation of Human Rights. Even after the tremendous effort that had been put into this process only a few of their recommendations had been taken into consideration by the government. For a successful transitional justice mechanism in Sri Lanka it is important to consider every aspect of the previous efforts in other countries and go about it in a lessons learnt approach. Sri Lankan case is very different because it is a country with a different socio-economic, socio-political, socio-cultural background and a different legal system. Hence we must not hurry in to adopting a system similar to any of the other countries, nor should we make unwise speculations. Much innovation is required for a unique Transitional Justice process that captures the Sri Lankan context that exudes peace building and reconciliation as opposed to retribution.

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